The infamous Delhi Ordinance Bill was passed by both houses earlier this month. This bill attracted a lot of criticism for its unconstitutional and non-federal appearance. The Indian Constitution provides for a federal system with Unitary bias; this unique and significant feature of our federation with a centralising tendency has Delhi in power discordance.
In essence, Delhi lost statehood due to The States Reorganisation Act of 1956 and became a union territory; but in 1991, the Congress-led Centre brought the 69th constitutional amendment act (Article 239AA), which granted Delhi the special status of National Capital Territory.
The Lieutenant Governor, appointed by the centre as the administrator, is vested with power over Police, Public Order, and Land.
The special status created a Legislative assembly with 70 members and a seven-member council of ministers headed by the chief minister with powers over subjects under the state and concurrent lists (except for reserved subjects).
The Lt. Governor is to function with the aid and advice of the council of ministers headed by the chief minister. These are the special provisions prescribed for Delhi. Here, the constitutional machinery is quite efficient, but the interference of political interests may have disrupted the ease of governance and cooperation between the authorities that share power over Delhi’s administration.
In 2014, the BJP promised full statehood to Delhi in its election manifesto, as did the Congress, and the Aam Aadmi Party (AAP). Despite these promises, Delhi didn’t see statehood.
The BJP government was rejected by the people in three subsequent elections, and the Aam Aadmi Party established itself as the popular party in Delhi.
The allegation is that the BJP government at the centre tries to govern the capital indirectly through the Lieutenant Governor, creating a substitute government in Delhi that surpasses the election outcomes.
The Chief Minister of Delhi, Arvind Kejriwal, has publicly criticised the centre on numerous occasions for this hijacking of power. The Lieutenant Governor, Najeeb Jung, disregarded developmental projects and efforts at smooth administration by the AAP-led Delhi government and blocked many initiatives at administrative reforms. Some significant disruptions were eventually criticised by the Supreme Court.
The Anti-Corruption 24/7 Helpline 1031 and Anti-Corruption Bureau, launched by CM Arvind Kejriwal, were running efficiently but were claimed by the L-G over Jurisdictions, after which their functioning stood next to nil.
The power over the appointment, transfer, and control of civil service officers working in the territory, which usually lies with the elected government, was challenged; In May of 2015, the central government headed by PM Narendra Modi directed Delhi Bureaucrats to report to the Lieutenant Governor (L-G) instead of reporting to the Delhi government. This was a problematic decision, as it puts administration in the hands of the Delhi L-G (an extension of the central government) instead of the government elected by the people.
CM Arvind Kejriwal accused the centre of directing the officers for non-cooperation, which stalled the meetings and functioning of different departments for months.
Further, the Delhi-Centre relationship was strained by the inaccessibility of the Delhi L-G to the Chief Minister; CM Arvind Kejriwal was seen waiting in the lobby of the L-G’s office for a week to discuss the absence of the civil servants and other administration concerns. The Chief Ministers of West Bengal, Karnataka, Andhra Pradesh, and Kerala reached Delhi to meet the L-G in solidarity with the Delhi CM in this ‘Constitutional Crisis’, but were denied the meeting.
The administration was dysfunctional due to numerous clashes back and forth between the CM and the LG. The clash rose to the high court, which ruled in favour of the L-G. Further, the matter was appealed to The Supreme Court.
July 4, 2018 The Supreme Court, in its judgement, recognised the federal structure that applies to Delhi with its special status and held that except for police, law and order, and land, the Delhi government has the power to legislate and administer civil services.
THE GOVERNMENT OF THE NATION TERRITORY OF DELHI (AMENDMENT) BILL, 2021 was passed by both houses in March of 2021.
This bill amended the power distribution between the CM and the L-G of Delhi. (It gave discretionary powers to the L-G even in matters where the Legislative Assembly of Delhi is empowered to make laws.) Denoting the L-G as the “Government” in the bill was also problematic.
This attracted wide-spread criticism as it disregards the federal structure of the government by transferring the power of an elected government to the Lieutenant-Governor (chosen by the central government), making it a puppet government run by the centre.
11th May, 2021- The Supreme Court yet again unanimously ruled in favour of the Delhi Government. The five-judge bench headed by CJI DY Chandrachud held that the legislature holds control over bureaucrats in administrative services. (Subject to the exclusions of police, law and order, and land.)
The CJI said, “The legislative and executive power of the Government of the National Capital Territory of Delhi (GNCTD) over entry 41 shall not extend over to services related to public order, police, and land. However, legislative and executive power over services such as IAS or joint cadre services, which are relevant for the implementation of the policies and the vision of the NCTD in terms of the day-to-day administration of the region, shall lie with the NCTD.”
3rd August, 2023- The Government OF The Nation Territory OF Delhi (Amendment) Bill, 2023, was introduced in the Lok Sabha by Union Minister Amit Shah. This bill effectively nullifies the Supreme Court verdict.
Both houses cleared the bill earlier this month (Lok Sabha on August 3, 2023, and Rajya Sabha on August 7).
This bill strengthens the role of the L-G and gives more power to the appointment and control of civil servants and services, violating the federal structure of the constitution.
This move is observed as undemocratic as it undermines the elected government and vests administrative powers in L-G.
Former Union Minister and Congress Leader P Chidambaram called the bill unconstitutional. He said, “This government tried it once, and they failed; they tried it a second time, and they failed, and you’re trying it a third time… What you’ll get is a spectacular failure. Delhi has 3.17 crore people who elect a government, to govern them, and take decisions on their behalf; the underlying premise is that we are a representative and parliamentary democracy.”
He elegantly points out that the Indian Constitution puts a formal and a functional head in place (the former being the President or Governor and the latter being the PM or CM), and the formal head is to function in accordance with the ‘aid and advice’ of the functional head. This bill subverts the words ‘aid and advice’.
The Crux of the issue comes down to a popular speculation,
- Is the BJP government attempting to subvert the institution of elections and take control of Delhi governance anyway, despite losing elections consecutively?
Articles 131 and 246 provide constitutional provision for judicial review for an issue of this nature. The apex court has weighed in on the same issue twice before at the same junction, and ruled in favour of the Delhi government. As the ordinance is not beyond judicial review, the apex court could once again uphold the federal structure of the constitution, as it did twice before.
Though judicial interference could resolve the power struggle, the solution could be momentary.
There needs to be a responsible administration and cooperation between the parties that share the power of administration to bring about a stable polity. This stability and smooth functioning of the constitutional machinery are only possible if the representatives in power keep the interests of the people above serving political or party aspirations.
Image Credits: India Today
